Schreiber v. Loew's Incorporated

• Citation: 147 F. Supp. 319
• Decision Date: 04 January 1957
• Docket Number: Civ. A. No. 2164,2191.
• Parties: Myrtle SCHREIBER, Fannie London, Rose G. Smilay and Alex Schreiber, Plaintiffs, v. LOEW'S INCORPORATED, a Delaware corporation; Paramount Pictures, Inc., a New York corporation, et al., Defendants. Don HARLO, Plaintiff, v. LOEW'S INCORPORATED, a Delaware corporation; Paramount Pictures, Inc., a New York corporation, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

147 F. Supp. 319

Myrtle SCHREIBER, Fannie London, Rose G. Smilay and Alex Schreiber, Plaintiffs, v. LOEW'S INCORPORATED, a Delaware corporation; Paramount Pictures, Inc., a New York corporation, et al., Defendants.

Don HARLO, Plaintiff, v. LOEW'S INCORPORATED, a Delaware corporation; Paramount Pictures, Inc., a New York corporation, et al., Defendants.

Civ. A. Nos. 2164, 2191.

United States District Court W. D. Michigan, S. D.

January 4, 1957.

Seymour F. Simon, Chicago, Ill., Elden W. Butzbaugh, Benton Harbor, Mich., for plaintiffs.

Clayton F. Jennings, Lansing, Mich., Rockwell T. Gust and David A. Howell, Detroit, Mich., for defendants.

KENT, District Judge.

These actions arise under the antitrust laws of the United States¹ for damages alleged to have been sustained by the plaintiffs in the operation of certain theatres. Plaintiffs Schreiber, et al. are the successor owners of the Three Rivers Rialto Theatre in Three Rivers, Michigan, from December 25, 1935, until August 16, 1938. Plaintiff Harlo was the owner and operator of the Harlo Theatre in St. Joseph, Michigan, "from July 1, 1944 up to and including the present time" (paragraph 2 of the complaint which was filed February 5, 1953).

The defendants are distributors of motion pictures and owners of chains of motion picture theatres with the exception of Butterfield Michigan Theatre Company and W. S. Butterfield Theatres, Inc. All of the defendants were alleged to be parties defendant in the case entitled United States v. Paramount Pictures, Inc., 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260, which was an anti-trust action commenced on July 20, 1938, and terminated completely on February 8, 1950, when the last final decree was alleged to have been entered. Final decrees had previously been entered against R.K.O. Pictures on November 8, 1948, and against Paramount Film Distributing Corporation on March 3, 1949.

Paramount Pictures Inc., a New York corporation, one of the parties defendant in each of the actions was admittedly dissolved as a corporation under the provisions of the laws of the State of New York a substantial period of time prior to the commencement of these actions.

All of the defendants have joined in motions to dismiss on the ground that both actions are barred by the provisions of the Michigan Statutes relative to limitations of actions. Michigan Statutes Annotated § 27.605, Comp.Laws 1948, § 609.13, provides in part as follows:

"Sec. 27.605. Limitations of personal actions; * * *.

"Sec. 13. All actions in any of the courts of this state shall be commenced within 6 years next after the causes of action shall accrue, and not afterward, except as hereinafter specified: Provided, however, * * *

"2. Actions to recover damages for injuries to person or property and actions for trespass upon lands shall be brought within 3 years from the time said actions accrue, and not afterwards;"

The first question before the court in each case is whether plaintiffs are bound by the general six year provision of the above quoted statute or by the specific three year provision, which turns on a determination of whether the Clayton Act, 15 U.S.C.A. § 12 et seq. which gives a right of action to one who has been "injured in his business or property," § 15, has the same connotation as the limitation of action provision of the cited Michigan statute which requires plaintiffs to bring "actions to recover damages for injuries to person or property * * within 3 years."

Counsel have cited us to and the court has examined numerous state statutes relating to limitation of actions and the interpretation by various and sundry state and federal courts of these statutes of limitations as they relate to the meaning of "business" and "property" and whether these terms are synonymous.

It is clear that state law will govern as to limitations and the decisions of state courts must be followed to determine to what actions certain limitations apply. However, the nature of an action under the anti-trust law has been held to be a matter to be determined solely by federal law. Barnes Coal Corp. v. Retail Coal Merchants Ass'n, 4 Cir., 1942, 128 F.2d 645; Glenn Coal Co. v. Dickinson Fuel Co., 4 Cir., 1934, 72 F.2d 885, and Williamson v. Columbia Gas & Electric Corp., D.C.Del.1939, 27 F.Supp. 198. However, certain of the courts have not been consistent in following the above announced rule as appears in Hoskins Coal & Dock Corp. v. Truax Traer Coal Co., 7 Cir., 1951, 191 F.2d 912; Christensen v. Paramount Pictures, Inc., D.C.Utah 1951, 95 F.Supp. 446; Jaeger Research Laboratories v. Radio Corporation of America, 3 Cir., 1937, 90 F.2d 826; Northern Kentucky Telephone Co. v. Southern Bell Telephone & Telegraph Co., 6 Cir., 1934, 73 F.2d 333, certiorari denied 294 U.S. 719, 55 S.Ct. 546, 79 L. Ed. 1251. Two Michigan cases have been cited which would appear to be applicable to the present situation. Sweet v. Shreve, 1933, 262 Mich. 432, 433, 247 N.W. 711 and American Surety Co. v. McKiearnan, 1943, 304 Mich. 322, 8 N.W.2d 82, 145 A.L.R. 1235.

The Sweet case, supra, was a suit for damages for fraud perpetrated upon the plaintiff when the plaintiff purchased a boarding house. It was the defendant's contention that the injury was within the "injury to person or property" section of the Michigan statute relating to the limitation of actions, above cited, and that plaintiff's case was thereby barred because more than three years had elapsed since the cause of action accrued. The court commented that some testimony indicated that the action was commenced within one and one-half years after discovery of the fraud but the court stated, 262 Mich. at page 435, 247 N.W. at page 712:

"Furthermore, we do not believe that the present action constitutes one for injuries to person or property. It is a suit brought for the recovery of damages caused plaintiffs as a result of fraudulent representations made by defendants. Previous Michigan decisions have assumed that actions for fraud are covered by the general six-year limitation in section 13976. See Holman v. Moore, 259 Mich. 63, 67, 242 N.W. 839; Ramsey v. Child, Hulswit & Co., 198 Mich. 658, 667, 165 N.W. 936; Armstrong v. Rachow, 205 Mich. 168, 179, 171 N.W. 389. While there are some authorities in other jurisdictions to the contrary and it may be claimed that the precise point here involved was not carefully considered in the cases cited, we believe the correct rule to be that, where the damages claimed are not for injuries to specific property, subsection 2 of section 13976, C.L.1929, does not apply, but the action may be brought within the general six-year provisions in section 13976, C. L.1929."

In the American Surety case supra plaintiff surety company had paid its liability under the terms of a certain bond on the defendant who had embezzled funds. Plaintiff then took a note from the defendant on which the suit in question was based. It was defendant's claim that the debt evidenced by the note was discharged by his bankruptcy. The court held that the suit was a suit on a note, but that plaintiff was nevertheless entitled to rely upon defendant's tort, i. e. willful conversion as defeating the claimed discharge in bankruptcy. The court thus held that the willful conversion of money was an injury to property within the meaning of the Bankruptcy Act, Title 11 U.S.C.A. § 35.

From the Michigan cases it appears that the present action cannot be neatly labelled or clearly defined in any way that is helpful toward determining the applicability of the Michigan Statute relative to limitations of actions. It would appear that a proper construction of the statute in question would be; any case not clearly otherwise provided for must come within the six-year limitation. Thus the question before the court is whether the present action under the anti-trust laws is clearly provided for by subsection 2 of Section 27.605, M.S.A.

This court is of the opinion that the distinction drawn by a distinguished jurist is conclusive in the proper definition of this action. In Chattanooga Foundry & Pipe Works v. City of Atlanta, 203 U.S. 390, at page 398, 27 S.Ct. 65, at page 67, 51 L.Ed. 241, Mr. Justice Holmes, delivering the opinion of the court, stated as follows:

"It was pressed upon us that formerly the limitations addressed themselves to forms of action; that actions upon the case, such as this would have been, were barred in three years, following Stat. 21 Jac. I, chap. 21, § 3, and that when a change was necessitated by the doing away with the old forms of action, it is not to be supposed that the change was intended to affect the substance, or more than the mode of stating the time allowed. Of course, it was argued also that this was an injury to property, within the plain meaning of the words. But we are satisfied, on the whole, and in view of its juxtaposition with detention and conversion, that the phrase has a narrower intent. It may be that it has a somewhat broader scope than was intimated below, and that some wrongs are within it besides physical damage to tangible property. But there is a sufficiently clear distinction between injuries to property and `injured in his business or property,' the latter being the language of the act of Congress. A man is injured in his property when his property is diminished. He would not be said to have suffered an injury to his property unless the harm fell upon some object more definite and less ideal than his total wealth. A trademark, or a trade name, or a title, is property, and is regarded as an object capable of injury in various ways. But when a man is made poorer by an extravagant bill we do not regard his wealth as a unity, or the tort, if there is one, as directed against that unity as an object. We do not go behind the person of the sufferer. We say that he has been defrauded or subjected to duress, or whatever it may be, and stop there. It was urged that the opening article to which we have

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